The Brook at Kalinga Park [2004] QBCCMCmr 84 (12 February 2004)

Number of Scheme:	19692
Name of Scheme:	The Brook at Kalinga Park
Address of Scheme:	135 Bage Street TOOMBUL QLD 4012

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Geoffrey Charles Joyner, the owner of lot 11

I hereby order that the application for an order:

1. That the body corporate refund the sum of $66.00 paid by the applicant for a termite inspection which he did not authorise
2. That the body corporate either arrange for the work carried out to the applicant’s roof to be completed to a satisfactory standard or refund to the applicant up to the sum of $198 to cover the applicant’s costs to arrange the additional work to be done

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0539-2003

"The Brook at Kalinga Park" CTS 19692

The applicant, Geoffrey Charles Joyner, has sought a final order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The applicant also sought an order that the voting records for the annual general meeting held on 18 June 2003 be corrected to include his votes on all motions, particularly motion 7 relating to a variation of the management agreement. I disposed of that part of the application in an interim order dated 15 September 2003, which provided as follows:

I hereby order that the body corporate shall within 7 days of the date of this order correct the voting records for the motions considered at the annual general meeting held on 18 June 2003, so as to include the votes cast by the applicant, Geoffrey Charles Joyner.

I further order that the vote to be recorded by the body corporate on behalf of the applicant, Geoffrey Charles Joyner, in relation to motion 7 is a "No" vote.

I further order that following such corrective action, motion 7 relating to the Deed of Variation of the Management Agreement shall be recorded as having been lost.

After the interim order was made, the body corporate manager and the body corporate committee were invited to respond to the application for the purpose of final orders. The submission dated 1 October 2003 submitted on behalf of the body corporate committee included the following request:

It is requested that you review the basis upon which the interim order was made as there will be far reaching consequences for bodies corporate if the final order embodies the principle adopted in the interim order.

I cannot revisit the order that I have made in respect of the voting. My statement of reasons accompanying the interim order made it clear that I was determining the issue in relation to voting at that time because I considered that it was a matter which should not have been further delayed. Accordingly, although that determination was made in an interim order, it was nonetheless a final determination on that issue. I went on to state that I intended to deal with the matters relating to the termite inspection and the roof repairs in the final orders. I am, therefore, "functus officio" in relation to the issue of voting. My order dated 15 September 2003 stands. I am unable to make further comment in that regard.

Turning to the issue of the termite inspection, I note that the body corporate has acknowledged that it did not obtain the applicant’s agreement to the termite inspection. The body corporate secretary explained that the body corporate arranged the inspections "as there had been evidence of termite activity and, due to the position of the complex next to a park with dense portions of trees the body corporate felt that there was a high risk of infestation and proceeded with inspections as time was of the essence. If the owners had been left to organise their own inspections the cost to each owner would have been in excess of $100.00 and taken an extended period. The body corporate requested that the reasonable cost for services rendered ($66.00) be reimbursed to the body corporate."

In a letter dated 19 August 2002, the applicant advised the body corporate secretary that he did not accept liability for the termite inspection because the property has previously had no report of termites and had been treated for termites in the previous 2 years. Whilst the body corporate should have obtained the applicant’s agreement before the inspection was carried out, I accept that the body corporate acted in good faith in arranging the inspection, particularly if there had been evidence of termite activity in the immediate vicinity. The applicant has not asserted that he could have had the inspection carried out any more economically, nor has he claimed that the inspection was of no value to him. Annual pest control does not include treatment for termites, unless specifically stated. The applicant has not claimed otherwise. I do not propose to order that the body corporate reimburse the applicant as he has received the benefit of a service, albeit one that he did not specifically request.

Similarly, I do not intend to order that the body corporate reimburse the applicant for the sum of $198.00 paid for the roof repairs. The repairs were not carried out by the body corporate, but by a contractor engaged by the body corporate. By entering into an agreement, under section 118 of the Accommodation Module, with the body corporate for the supply of the service (the repairs) the applicant agreed to pay the amount charged for that service. The body corporate secretary stated that the contractor, upon whose engagement the applicant and the other owners voted, had subsequently gone out of business which the secretary correctly pointed out was a matter over which the body corporate had no control. Under these circumstances, I do not consider that the body corporate should then be held responsible for the faulty workmanship. Accordingly, any refund to the applicant of the monies paid by him would simply place an unfair burden on the other members of the body corporate. The applicant may choose to pursue the contractor in another forum, which he would be entitled to do.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

The Brook at Kalinga Park [2004] QBCCMCmr 84 (12 February 2004)